FREE CHAPTER from ‘A Practical Guide to the Participation of Children in Family Law Proceedings’ by Mani Singh Basi

CHAPTER ONE – AN INTRODUCTION TO CHILDREN PARTICIPATION


Introduction to chapter

This Chapter will provide an overview of the topics that this book will consider. In particular, it will set out why it is important for practitioners to think at the outset and during the whole course of the proceedings as to children participation in proceedings. In this book, reference will be made to ‘children’ but of course proceedings can also concern ‘a child’ only. Equally, at times, reference may be made to ‘child’ but the context can also be provided for in relation to ‘children’.


Children Participation – An Introduction

Disputes relating to children are vast ranging and the severity of the issues involved can vary a tremendous amount. As this book will consider, different principles apply in terms of the law whether proceedings are classified as private law or public law proceedings. The outcomes of such proceedings can also vary in terms of its severity, with for example public law proceedings resulting in placement orders and children being adopted. In both proceedings, children can be involved in many different ways. Further, the role of children in other family law proceedings is also different, for example in child abduction proceedings. Child abduction proceedings can be split into two forms, firstly the inherent jurisdiction and secondly child abduction pursuant to the 1980 Hague Convention. Both areas of child abduction have resulted in a lot of appellant cases emphasising and establishing the importance of children participation.

There continues to be even at the time of writing this book (March 2024) studies and work undertaken to assess and understand the mechanism in which children are heard in family law proceedings[1].

In certain circumstances children can be separately represented, either instructing a solicitor directly or having their interests preserved by a guardian appointed on their behalf (the latter being is automatic in public law proceedings). This is a Chapter within itself.

Further, whilst the majority of the law that will be considered in this book can be found in the form of statute such as the Children Act 1989 or treaties such as the 1980 Hague Convention, the vast majority of guidance appears through case law and the Family Procedure Rules 2010 [‘FPR’]. Both the FPR and case law has considered the tricky issues in existence in trying to find the right balance in ensuring children are heard in proceedings which ultimately deal with them directly. The law is however clear – the child’s welfare is paramount, the child’s wishes and feelings appear in the welfare checklist and more importantly, the child’s voice should and must be heard. However, the mechanism in which the child’s voice can be heard is what can vary case-by-case depending upon a number of different factors.

It is a well-recognised common feature of domestic and international Convention jurisprudence that the voice of a subject child will need to be heard. For example, Article 12 UNCRC requires that to ensure participation of children in proceedings affecting them requires that measures taken must be ‘…to be effective and meaningful, it needs to be understood as a process, not as an individual one-off event.’[2]. These rights of children are to be applied in accordance with one of the core principles of the UNCRC, the concept of evolving capacity under Article 5 of the UNCRC which extends to ‘…to processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized…’.

These aims through Article 12 were emphasised by Baroness Hale in In Re D (A Child) (Abduction: Rights of Custody)[3] when she referred to Article 11(2) of Brussels IIa as enunciating a principle of “universal application” and to this being “consistent with our international obligations under article 12” of the UNCRC.

In General Comment No.12 (2009) The right of the child to be heard, the Committee said:

“25. The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian. The child must also be informed about the conditions under which she or he will be asked to express her or his views. This right to information is essential, because it is the precondition of the child’s clarified decisions.”

(ii) “Either directly, or through a representative or an appropriate body”

  1. After the child has decided to be heard, he or she will have to decide how to be heard: “either directly, or through a representative or appropriate body”. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings.
  2. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation. Representatives must have sufficient knowledge and understanding of the various aspects of the decision- making process and experience in working with children.
  3. The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (e.g. residential home, administration or society). Codes of conduct should be developed for representatives who are appointed to represent the child’s views.” (emphasis added).

Turning to the concept of legal representation, which is also an essential feature of domestic law and rights in England and Wales, in General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) the Committee said:

“e) Legal representation

  1. The child will need appropriate legal representation when his or her best interests are to be formally assessed and determined by courts and equivalent bodies.. In particular, in cases where a child is referred to an administrative or judicial procedure involving the determination of his or her best interests, he or she should be provided with a legal representative, in addition to a guardian or representative of his or her views, when there is a potential conflict between the parties in the decision.” [emphasis added]

In England and Wales, the domestic law has developed over the years to recognise the growing and essential weight that must be attached to the voice of children, after all – proceedings relate to them. There are a number of different systems and ways in which children can effectively participate in these proceedings. This may be through welfare reports where children can express their views, through organisations such as Cafcass, or a local authority or independent social worker. At times, a guardian can be appointed for children, or a child may instruct a solicitor directly. A child can meet the trial judge, or write a letter to the judge. The situation and the developing feature of the various ways that children can participate was summarised in Mabon v Mabon[4] [2005] Thorpe LJ at paragraph 25, where the following was stated:

“.. In our system we have traditionally adopted the tandem model for the representation of children who are parties to family proceedings, whether public or private. First the court appoints a guardian ad litem who will almost invariably have a social work qualification and very wide experience of family proceedings. He then instructs a specialist family solicitor who, in turn, usually instructs a specialist family barrister. This is a Rolls Royce model and is the envy of many other jurisdictions. However its overall approach is essentially paternalistic. The guardian’s first priority is to advocate the welfare of the child he represents. His second priority is to put before the court the child’s wishes and feelings. Those priorities can in some cases conflict. In extreme cases the conflict is unmanageable. …”.


Conclusion of Chapter

Therefore, as this book will outline from this introduction – the role of children in private, public and international disputes are sometimes similar, but also different. There are various ways, enshrined by procedure rules, legislation (both domestic and international) and case law which outlines the importance of active children representation.

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[1]    The Nuffield Foundation completed a sample study which included 40,753 family law cases that started in 2019/2020.

[2]    Committee on the Rights of the Child General Comment No 12 (2009): The Right of the Child to be heard CRC/C/GC/12

[3]    [2006] UKHL 51, paragraph 58

[4]    [2005] EWCA CIV 634